39.As stated above, one of the principal purposes of the Bill is to “protect hard-working citizens from the risks posed by untested, unknown and potential harmful drugs”. This message was reiterated by the Minister in the Lords, Lord Bates, who said “success would mean reducing the harms caused by new psychoactive substances”. However, a number of written submissions have highlighted that, unlike the Misuse of Drugs Act, the Bill does not feature the concept of harm.
40.Amber Marks notes the absence of the concept of harm, despite the fact that not all psychoactive substances are harmful, and suggests that offences that were based on harm might be more appropriate than the current basis of psychoactivity. Written evidence from a group of academics goes further stating “this bill does not calibrate for harm, and indeed exempts known harmful substances whilst banning substances which are not harmful simply because they are psychoactive” which they believed should be a secondary issue.
41.Rudi Fortson QC argued that this might cause difficulties in that a sentencing court would wish to determine a just penalty, commensurate with the offence, having regard to the harm associated with the drug in question. He has highlighted the Government position, that it does not intend to be disproportionate with the sentencing, but contends that “in the absence of drug classification, or an expert’s opinion (if accepted) as to harm, the courts will have little option but to assume that all psychoactive substances are equally harmful”. In correspondence with the ACMD, the Home Secretary explained that law enforcement agencies would give priority to policing “those sources of supply which caused the most harm to communities in terms of crime and disorder or where connected with organised crime”. Additionally, enforcement guidelines would be developed with an emphasis on “the more serious incidences, where organised crime, acquisitive crime, disorder or harm to others are involved”. Furthermore, the Bill contains both criminal and civil sanctions which will enable law enforcement agencies to adopt a proportionate response, including the option of pursuing out of court disposals in appropriate cases. In oral evidence the Minister reiterated the view that the Government did not wish to be disproportionate with sentencing.
42.Professor Iversen told us that the problem with including a definition of harm was that it would take time to amass the evidence, which takes away the proactive nature of the Bill. However, he reiterated that if a substance banned under the new Bill was shown to be still being used and to be causing harm, it might then be brought under the Misuse of Drugs Act.
43.We received written evidence from the National Aids Trust, who argued that alkyl nitrites should be exempted from the legislation. More commonly known as ‘poppers’, alkyl nitrites are widely used by gay men. The National Aids Trust argued that the harms from ‘poppers’ were low, because effective regulatory action had already been taken against particular compounds, such as amyl nitrite and butyl nitrite, which had raised health concerns. The Trust was concerned that a ban on the sale of alkyl nitrites would not end their use, but simply drive retail and use ‘underground’. It argued that this would take the use of alkyl nitrites outside any regulatory regime which might successfully protect gay men from particular compounds, leading to an increased risk of health harms, and even possibly deaths. In addition, if the sale of ‘poppers’ is displaced to drug dealers, there could be a further risk of migration to the use of other drugs. The Gay Men’s Health Collective stated that banning ‘poppers’ would result in increased class A and B drug use, and increased transmission of STIs.
44.Dr Owen Bowden-Jones told us his clinic had seen lots of people who use ‘poppers’, and that “[a]s far as I can speak as a clinician, I do not think I have ever seen anybody come [to our clinic] with harms related to ‘poppers’” (although he recognised that there was a link between ‘poppers’ and eye damage). Professor Iversen told us that under the ACMD’s proposed alternative definitions any synthetic psychoactive chemical would be banned, which included ‘poppers’. However, he said that in the past the ACMD had not seen sufficient scientific evidence for harm in the case of ‘poppers’ to justify a recommendation under the Misuse of Drugs Act, and that he was not aware of any growth in the use of ‘poppers’. Professor Iversen subsequently wrote to us stating that, when the Council last assessed the harms associated with ‘poppers’ it concluded that the misuse of ‘poppers’ was “not seen to be capable of having harmful effects sufficient to constitute a societal problem.” Despite this assessment, the Minister told us that ‘poppers’ will be banned as part of the blanket ban.
45.We accept the evidence given by Professor Iversen, the National Aids Trust, and the Gay Men’s Health Collective on alkyl nitrites, also known as ‘poppers’. Professor Iversen said ‘poppers’ were “not seen to be capable of having harmful effects sufficient to constitute a societal problem” and therefore we recommend they should not be banned. If in the future there is any evidence produced to the contrary, then ‘poppers’ should be removed from the exempted list or controlled under the Misuse of Drugs Act.
46.The Home Office’s written evidence said that the definition of a psychoactive substance in the Bill will include nitrous oxide, also known as laughing gas. It states that in 2013/14, nitrous oxide was the second most popular drug among young adults (7.6%), with use higher than powder cocaine (4.2%), ecstasy (3.9%) and amphetamines (1.6%), but lower than cannabis (15.1%).
47.Professor Iversen told us that since nitrous oxide is made by synthesis and produced in quantities for legitimate and misuse reasons it could be included in the Bill. Recently the ACMD had advised on the harm of nitrous oxide, and did not see sufficient scientific evidence for harm to justify a recommendation under the Misuse of Drugs Act. However, he said that he would like to review the social harm of nitrous oxide use since it had grown remarkably in the last two years, and that the Advisory Council might now come to a different view.
48.Given the growth in the use of nitrous oxide, otherwise known as ‘laughing gas’, and the associated social harms, we recommend that the ACMD be asked to review whether it should be controlled under the Misuse of Drugs Act. If it does not reach that threshold, we are content that it should be covered by the provisions of the Bill, which should slow the growth in its consumption as a psychoactive substance. If in the future there is any evidence produced that indicates it might be added to the list of exemptions, this should be taken into consideration. Nitrous oxide does have genuine benefits when used legitimately, particularly within the dentistry profession and for pain relief during childbirth.
49.We accept the evidence that there is a lack of clarity in the Bill with regard to the relative harm associated with different types of NPS and the appropriate sentence commensurate with the offence. We recommend that the Sentencing Council be requested to produce appropriate sentencing guidelines taking account of relative harms.
56 Prime Minister’s Office, , P72
58 Amber Marks, Lecturer in Criminal Law and Evidence, Queen Mary, University of London ()
59 Professor Julian Savulescu et al ()
60 Rudi Fortson QC ()
65 National Aids Trust ()
66 Release and Transform ()
68 Qs 71-72
69 Qs 73-74
70 Advisory Council on the Misuse of Drugs ()
71 Qs 123 and 128
72 Home Office ()
Prepared 22 October 2015